Amicus with Dahlia Lithwick: "Color Blind Constitution"

Podcast: Amicus With Dahlia Lithwick | Law, justice, and the courts
Host: Dahlia Lithwick
Guest: Professor Risa Goluboff, University of Virginia
Date: November 28, 2015
Episode Theme:
A deep dive into the legal and historical roots of the Supreme Court’s affirmative action jurisprudence, focusing on the concept of the "colorblind Constitution." The discussion uses the then-pending case Fisher v. University of Texas as a lens to explore how the Supreme Court’s understanding of race, equality, and the Constitution has evolved from Plessy v. Ferguson and Brown v. Board of Education up to the present Roberts Court.

Main Theme and Purpose

The episode examines the tension in Supreme Court jurisprudence over whether the Constitution requires the government to be "colorblind," especially in education. Through a wide-ranging conversation with law and history professor Risa Goluboff, Dahlia Lithwick explores how concepts like equality, race, and colorblindness have shifted, been appropriated, and redefined from the late 19th century to contemporary affirmative action debates.

Key Discussion Points and Insights

1. Background: Fisher v. University of Texas and Affirmative Action

• Case Overview ([00:55]):

  • Fisher v. University of Texas concerns a white student (Abigail Fisher) challenging UT Austin's admissions policies that consider race as one factor among many.
  • UT's "10% plan" automatically admits the top 10% of Texas high school students, indirectly promoting diversity because of segregation, but supplements this with holistic review where race is a minor factor ([02:42]).

• Legal Context ([03:49]):

  • Recall of 2003 University of Michigan cases: Gratz v. Bollinger (undergrad—struck down for mechanistic point system) vs. Grutter v. Bollinger (law school—upheld because of holistic admissions).
  • Justice O’Connor’s "25 years" quote in Grutter signals a hope/expectation that race-based affirmative action would eventually become unnecessary ([07:01]).

2. What Does ‘Colorblind Constitution’ Mean?

• Origins in Plessy v. Ferguson ([12:56]):

  • Justice Harlan’s famous dissent asserted the Constitution is colorblind, but Goluboff cautions that Harlan “still believed in white dominance… the idea of the colorblind Constitution is not inconsistent with the possibility that we live in a caste system in which white people still have the power.” ([13:30])
  • Harlan’s version was not modern progressive equality.

• Modern Supreme Court Usage ([15:43]):

  • The notion is now central to conservative legal thinking, with justices like John Roberts arguing the real constitutional harm is “the government thinking about race.”
  • Competing philosophies:
    • Anti-subordination view: Constitution should dismantle systemic, societal inequality.
    • Anti-classification/colorblind view: Constitution prohibits any race-based government action, regardless of motive.

• Notable Quote – Justice Roberts’ Aphorism ([15:43], paraphrased):
  “The way to stop discriminating on the basis of race is to stop discriminating on the basis of race.”

3. The Role of Brown v. Board of Education

• Two Lenses on Brown ([19:37]):

  • Brown I: Focused on the inherent harm of segregation and importance of ending government-mandated racial separation.
  • Brown II: Concerned with practical remedies—“with all deliberate speed” became infamous for enabling delay, but also indicated that real, practical integration required active, race-conscious government measures ([22:52]).

• Tensions in Interpretation ([24:38]):

  • For some, like Chief Justice Roberts, “achieving Brown means doing nothing on the basis of race” ([25:33]).
  • For others, like Justice Breyer, Brown represented a promise of real, lived equality that remains unfulfilled ([29:34]).

4. Modern Supreme Court Debates—"Parents Involved" and Beyond

• Seattle/Louisville School Cases ([24:38]–[28:53]):

  • John Roberts, referencing Brown: “The way to achieve a system of determining admission to public schools on a nonracial basis is to stop assigning students on a racial basis.” ([26:57])

  • Justice Breyer’s Dissent ([29:34]):

    • Powerful reading from the bench, asserting that Brown was about achieving equal, integrated society, not just colorblind process.

    Quote — Justice Breyer ([29:34]):
    “For Brown held out a promise. It was a promise embodied in three amendments designed to make citizens of former slaves. It was a promise of true racial equality, not as a matter of fine words on paper, but as a matter of everyday life...”

• Justice Kennedy’s Pivotal Role ([34:23]):

  • Often the swing vote, believes the government can (sometimes must) address social inequality, but is wary of direct race-based allocations—prefers “race-neutral” means ([35:15]).
  • “He’s really struggling; he’s not clearly in one camp or the other… he recognizes real racial inequality, but doesn't like the government giving things out on the basis of race.” (Goluboff, [35:15])

5. Diversity as the Justification for Affirmative Action

• From Remedy to Diversity ([36:38]):
  • Original justification was remedying past discrimination.
  • The Court narrowed this: only direct remediation of harms the government itself caused is constitutionally legitimate. Broader societal inequality isn't sufficient justification. Thus, diversity became the remaining permissible rationale.
  • Goluboff:
    “It’s a contingency of history that we end up with diversity as the justification ... That already is a narrowing of what government is allowed to do when it comes to race. And I think that's one step on the path to this idea of a colorblind Constitution.” ([39:49])

Notable Quotes & Memorable Moments

• On Harlan’s legacy ([13:30]):

  • “He bucked the trend ... but I think that we're wrong if we think of him as a progenitor of modern progressive equality ideals... the idea of the colorblind Constitution is not inconsistent with the possibility that we live in a caste system in which white people still have the power.” — Prof. Risa Goluboff

• Justice Roberts in Parents Involved ([26:57]):

  • “The way to achieve a system of determining admission to public schools on a nonracial basis is to stop assigning students on a racial basis.”

• Justice Breyer’s Dissent ([29:34]):

  • “For Brown held out a promise. It was a promise embodied in three amendments designed to make citizens of former slaves. It was a promise of true racial equality, not as a matter of fine words on paper, but as a matter of everyday life... It sought one law, one nation, one people...”

• On Justice Kennedy’s position ([35:15]):

  • “[He] thinks that when government gives certain things to certain people because of their race at all, that’s a problem… he’s really struggling to figure out, I think race matters, I think we still got a problem of racial inequality, but I don’t like this government giving things out on the basis of race.”

• On diversity as a rationale ([37:51]):

  • “It’s … odd. It’s not, in fact directed at the students who are the beneficiaries. It’s directed at the white students who, I guess, get the benefit of having a diverse classroom. So that’s odd.” — Lithwick

Timestamps for Key Segments

• [00:00] — Introduction, Fisher v. University of Texas background
• [03:49] — Context: Michigan affirmative action cases and Sandra Day O’Connor’s role
• [07:01] — O’Connor’s “25 years” sunset and whether the country has achieved colorblindness
• [12:56] — Origins: Plessy v. Ferguson, Harlan’s dissent, and the original meaning of "colorblind"
• [15:43] — The conservative co-opting of the colorblind Constitution; Roberts' Parents Involved aphorism
• [18:18] — Probing Roberts' logic: can colorblindness fix inequality?
• [19:37] — Two readings of Brown v. Board and the evolution from Brown I & II
• [24:38] — The "Parents Involved" decision: Roberts' and Kennedy’s opinions
• [28:53] — Justice Breyer’s emotive dissent and the promise of Brown
• [31:08] — The shift in conservative responses, Roberts as inheritor, and Thomas’ distinct objections
• [34:23] — Justice Kennedy's ambivalence and focus on race-neutral means
• [36:38] — Diversity as a rationale for affirmative action, the narrowing of remedial justifications
• [39:49] — Conclusion and reflections on the state of affirmative action and the Court’s trajectory

Summary Takeaways

• The “colorblind Constitution” is a complex, historically contingent idea that has shifted from a dissenting opinion (Plessy) to a rallying cry for both progressive reform and conservative restraint.
• Brown v. Board of Education is read in fundamentally different ways: as either a call for race-neutral government or an unfulfilled promise of equality.
• The Supreme Court’s approach has narrowed over time, constricting permissible justifications for race-conscious policies to “diversity”—a rationale that may serve institutional needs more than remedying inequality.
• The future of affirmative action lay in the balance at the time of the episode, with Justice Kennedy as the likely swing vote but hesitant about anything but race-neutral means.
• The debate ultimately revolves around views of government capability, societal trust, and historical responsibility for racial inequality.

For listeners and readers seeking an accessible yet deeply informed history of affirmative action law, this episode offers a clear, illuminating tour through over a century of constitutional debate on race, equality, and justice.